Published on :
The Bombay High Court on Wednesday reserved its verdict in the plea challenging a law passed by the Maharashtra government reducing the number of directly elected councillors within the Brihanmumbai Municipal Corporation (BMC) limits from 236 to 227 [Raju Sripad Pednekar v. State of Maharashtra & Ors.].
A bench of Justices SB Shukre and MW Chandwani reserved its order after hearing the petitions filed by ex-BMC councillors Raju Pednekar and Sameer Desai seeking quashing of the Act on the ground that it is ex-facie illegal and unconstitutional.
Maharashtra government had in 2021 increased the number of directly elected councillors by 9 to ensure proportionate representation in BMC as per the increased population, bringing the number to 236.
After the government changed in June 2022, the new government led by Eknath Shinde reversed the earlier cabinet decision and reduced the number of directly elected councillors to 227.
This was challenged in the High Court by ex-BMC councillors.
The petitions highlighted that the Act under challenge “proceeded on legally unsound basis” and on wrong interpretation of the Supreme Court order of May 4, 2022, which had directed to conduct elections based on delimitation process for 236 wards.
On May 4, 2022 the Supreme Court, while hearing petition on the OBC reservation in the local bodies had said the State Election Commission must proceed with the elections due on the expiry of the five-year term, and notify the same on the basis of the previous delimitation exercise.
The petitioners submitted that the elections to the Mumbai Municipal Corporation are already overdue by more than 6 months and if the Act is not stayed, then the State Election Commission will not be able to conduct BMC elections.
Senior Advocate Aspi Chinoy, along with advocate Nitin Pawaskar, appearing for the petitioners informed the Court that the State Election Commission (SEC) had already completed its requisite procedure for the elections based on the increased number of wards in the BMC.
Chinoy added that the State government did not raise any objection when they had filed a compliance report in the Supreme Court pointing out SEC’s completed work based on the increased wards.
Advocate General Dr Birendra Saraf for Maharashtra government argued that the plea was misconceived and filed on misreading of law.
He contended that the number of councillors was fixed by a statute and the same could not be increased or changed without considering latest census figures.
He added that after the last census of 2011, two BMC elections (2012 and 2017) had already been conducted
The government did not find it necessary to increase the number of seats for upcoming elections without a new census exercise taking place in the country, it was contended.
He explained that when the Supreme Court asked SEC to proceed on the “delimitation done” of the wards of the local bodies, it meant that the SEC was required to proceed with the elections as per the already existing notification for 227 seats.
Advocate Sachindra Shetye, appearing for the SEC, contended that the commission is bound to follow the existing law of the land which is why it had proceeded to issue final delimitation notification for the increased wards.
He also added that SEC is bound to act as per the Act in force which reduced the number of wards.
He stated that if the Court directs the Commission to proceed on the basis of the new Act, then it would.
Senior Advocate SK Mishra for the BMC stated at the outset that all parties ought to have acted as per the order of the Supreme Court.
He added that the order of Supreme Court was clear and the same requires elections to proceed as per the original number of wards which is 227.
